It has been a relatively slow news week at the Sixth Circuit this week, so we thought we’d share another observation from the recent Sixth Circuit Practice Institute.  In connection with technological transformation of appellate practice, one message that came from the judges on the various panels was that many of them are now reviewing briefs electronically, either with their laptop or iPad.  It appears that fewer and fewer judges are reviewing briefs in hard copy.  A consequence of the way in which briefs are now being read is that it makes it even more difficult for the reader to review footnotes.  Particularly if an iPad is turned sideways, it is virtually impossible to see both the text and the footnote at the same time.  What does this mean?  It means that a judge is probably not going to read your footnote.  Some judges are of the view that footnotes should almost never be used, while others are relatively ambivalent about the practice (I have never heard a judge actually express enthusiasm for footnotes).  But at the end of the day, whether you are a staunch opponent of footnotes or a chronic user of them, what should matter to you in drafting a brief is that the words are actually being read by the judges.  But with the more frequent resort to reading on briefs on the screen rather than hard copy, it suggests much greater caution in using footnotes (or those footnotes that you really want someone to read!).  There are of course some judges (none that I know of on the Sixth Circuit) who favor seeing all citations in footnotes, and some lawyers who write like that.  But one should only do that at the Sixth Circuit at their peril.  That type of brief will have very little readability, particularly on a screen.